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Why Pennsylvania Drug Felonies are Rarely ARD Eligible

On behalf of McClenahen Law Firm posted in Drug Felonies on Tuesday, November 5, 2013.

As a criminal defense attorney who represents a lot of Penn State students, there is one characteristic common to all of my college student clients: they want to avoid a criminal record. ARD, which stands for "Accelerated Rehabilitative Disposition" is a program for first time offenders in Pennsylvania. Successful completion of the ARD program allows a defense attorney to file a motion seeking dismissal of charges and expungement of the defendant's record.

ARD is not available to every first time offender. It tends to be limited to non-violent offenses, and usually, but not always, involves crimes with no identifiable victim. In the case of DUI, there were potential victims, while in a small amount of marijuana and drug paraphernalia case, there are not even potential victims. Not surprisingly, a lot of my clients charged with delivery or possession with intent to deliver marijuana ask about ARD. After all, they are 1) charged with a non-violent offense, 2) are first time offenders, and 3) the only person who can be called a victim, is the poor defendant himself.

But alas, here in Centre County, and pretty much every other county in Pennsylvania, the district attorney will not approve drug felony cases for ARD, even if the case involves selling a mere dime bag. In this county, ARD is not even available when the drug detective concedes that the defendant was just a middle man, who hooked up a "friend" with a small amount of marijuana as a favor, without receiving any compensation.

So, the obvious question is why won't Pennsylvania district attorneys approve marijuana delivery cases for ARD? It all stems from just how marijuana felonies are created in the first place. The police rely heavily upon "confidential informants," or "CIs," in order to ensnare people in drug delivery cases, especially in college towns. CIs are used much more extensively in a college town like State College, Pennsylvania, because 1) the typical college student is not going to naturally associate with middle-aged people, who comprise most drug detectives, and most students would think something is amiss if a man in his 30s or 40s asked a student for drugs, 2) CIs in a college town need not fear the repercussions that an inner-city or even rural CI would face. The college student who is a victim of a CI is not going to try to kill the CI or harm his family. Likewise, most college students are in State College only temporarily, so they are not worried about developing a reputation as a devious snitch in a community where they have always lived and plan to stay in, 3) college students want to avoid jail time and minimize their criminal record, and being a CI is one path towards that goal.

In order for the CI system to work, new CIs must constantly enter the pipeline. A normal person has natural, moral qualms about becoming a CI, because it involves inflicting great harm on a fellow human being, who is usually very similar to the defendant/ CI himself. Thus, the only way that law enforcement can assure a steady flow of CIs is by threatening heavy consequences against those who opt not to be CIs. If ARD were an option, only sociopathic defendants charged with a drug delivery would decide to ruin the lives of fellow students, simply to avoid the consequences for their own charges. Offering ARD in drug felony cases would quickly put an end to the CI system, and soon no one would be charged with drug felonies. And if that happened, people would have access to a supply of marijuana, while busting small time pot dealers at Penn State deters anyone from ever trying to sell marijuana at Penn State. Well, at least that is the Commonwealth's thought process, flawed as that logic may be.

Although ARD is not available for those charged with drug delivery, a skilled defense attorney can sometimes find other means to lessen a defendant's harm. Sometimes the police illegally obtain evidence, which a defense lawyer can seek to have "suppressed," which effectively ends the prosecution. Other times, a lawyer may be able to work out a plea agreement in which felony charges are reduced to misdemeanors. It is imperative to consult an experienced criminal defense attorney any time you face criminal charges, especially serious felonies.

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